The Real Question Is, Why Didn’t It Happen Sooner?

Times Staff Writer

There’s one sporting term that seems precisely on point in describing the decision Thursday by a federal judge in New York that apparently clears the way for Ohio State running back Maurice Clarett -- and others like him -- to play in the NFL:

Slam dunk.

The wonder of Judge Shira A. Scheindlin’s ruling is not so much the ruling itself, according to experts in antitrust law. The wonder is that it took until 2004.

The judge’s order, experts say, underscores a basic underpinning of American society -- the right to test one’s self, one’s skills and abilities, in the marketplace.

If a plumber has the right just out of high school to turn wrenches, why shouldn’t an 18-year-old football player have the right to run to daylight? If a basketball player can go straight from high school to the pros, why can’t a football player?

“Everyone can have their own view on whether college freshmen should leave school to play football. But ... it seems like a plain restraint [by the NFL] from hiring in the labor market,” said M. Laurence Popofsky, a senior partner at the San Francisco office of Heller Ehrman White & McAuliffe.


Popofsky, whose record of winning landmark cases led the California State Bar in 1999 to name him the antitrust lawyer of the year, added, “That’s why [the case] seems so easy.”

Clarett filed suit in September, challenging the NFL’s rule that a player must be out of high school three years to be eligible for the draft.

Clarett’s case is based on the federal antitrust laws, a web of complicated legalese that can sometimes seem impenetrable -- even to those schooled in the discipline. But the thrust of the laws is plain.

As the U.S. Supreme Court put it in a 1972 opinion, “The antitrust laws are the Magna Carta of free enterprise.”

The court continued, “They are as important to the preservation of economic freedom and our free enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. And the freedom guaranteed each and every business, no matter how small, is the freedom to compete -- to assert with vigor, imagination, devotion and ingenuity whatever economic muscle it can muster.”

In essence, what Clarett was arguing for was that basic -- the “freedom to compete.” In legal jargon, he said that the NFL’s three-year rule amounted to an “unreasonable restraint of trade.”

“Here you’re talking about the freedom of an individual to be able to exercise his talent in a trade he wants to be involved in,” said Joseph M. Alioto, a leading San Francisco lawyer who over the years has represented the Oakland Raiders and thus is no stranger to the NFL in antitrust-related litigation.

“If a group of people get together to try to prevent that, such an artificial restraint or agreement should be knocked down,” Alioto said. “It’s not part of America. It’s not part of that fundamental right everybody has, which is, you get to have a chance.”

Like many areas of law, however, the antitrust field allows for exceptions.

There can be “restraint of trade,” for instance, if it results from a collective bargaining agreement, a concession to the importance of labor laws. That exception is at the core of the NFL’s response to Clarett’s challenge.

The NFL and its players’ union reached agreement on a labor framework in 1993. The three-year rule, the NFL contends, was bargained for then and remains in place now, albeit via a complicated mechanism that includes reference to the NFL bylaws as well as memoranda issued by Commissioner Paul Tagliabue.

All well and good but, the judge said in what is sure on any appeal to be the most sensitive part of the ruling, beside the point.

The rules of collective bargaining are aimed at what lawyers call mandatory subjects -- wages, hours and conditions of employment. The three-year rule falls in none of those categories, she said.

Mark Conrad, an associate professor of legal and ethical studies at Fordham who has followed the case, said, “I’m not going to tell you it’s a wrong decision, but I think she read the antitrust laws pretty broadly, and I think this case would call for an appeal.”

Jeff Pash, an NFL executive vice president and the league’s chief lawyer, indicated in a conference call that the league was almost certain to appeal.

The NFL has challenged other adverse rulings and won on appeal, and Pash said, “We do think [the collective bargaining exception is] a very strong appellate position and one we’re very comfortable in advancing.”

The time frame of an appeal is uncertain. To keep Clarett -- and, presumably, others -- from the 2004 draft, the NFL will have to move quickly for a stay of Scheindlin’s 71-page decision.

In the meantime, as Clarett’s attorney, Alan C. Milstein, put it in a news conference, “It’s a victory for all athletes, professional athletes as well as amateur athletes.”

Scheindlin chose to quote Learned Hand, a federal judge known to every first-year law student for his name, his philosophical skepticism and his faith, expressed in opinions issued over 52 years on the bench, in the institutions of American society. He said the antitrust laws would not abide a contract that “unreasonably forbids anyone to practice his calling.”

Or, as Popofsky put it, referring to the three-year rule, “The only justification for it, arguably, is that somehow they’ve done God’s work. That normally doesn’t work in the law.”